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  1. #1
    BGOASA Martin Hedington's Avatar
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    Default When can I fire? Use of lethal force.

    When this came out five years ago I read it and (unlike the JASA case, which I just duplicated on another thread, DUH) I thought you might not have here.

    It is a paper by an Advocate working for ISS and therefore should be carefully read, then thought through before you possibly find yourself in the unfortunate position of either needing -or feel forced- to fire. Assuming you survive an armed confrontation, you may very well have to stand in a court of Law, probably many months later, then defend yourself verbally against someone far cleverer than you, the prosecuting Attorney. Be prepared, forewarned is forearmed.

    In common cause brothers,

    Martin_tu

    SA CRIME QUARTERLY No 8 JUNE 2004
    Anton du Plessis, Institute for Security Studies.

    WHEN CAN I FIRE? - Use of lethal force to defend property

    Can you use lethal force to protect your property, and if so, when? South Africans are confused about how much force they can use in defending themselves from crime, and mistakes in this area could have disastrous consequences. While the law remains unclear, the constitutional right to life is likely to be given precedence over the right to protect property.

    Various requirements must be met before the defensive act will be considered lawful. The attack must be:

    • commenced or imminent;
    • against a legally recognised interest;5 and
    • unlawful.

    The action made in defence must be:
    • necessary to avert the attack;
    • reasonable in terms of the amount of force used; and
    • directed against the attacker.

    Thus, the action taken must be in response to a currently pending aggressive action, and the law specifically rules out any action being taken, on the one hand, pre-emptively or, on the other, in ‘revenge’.

    The 2003 ISS National Victims of Crime survey concluded that South Africans are much more fearful of crime today than they were in 1998 (see article by D Mistry in this issue). This growing panic has prompted a wide range of self-protective measures, including many people arming themselves in anticipation of a criminal encounter. There have been a number of recent, well-publicised incidents of the use of lethal force in defending property. These have been accompanied by media statements to the effect that killing in defence of property is acceptable under South African law.1

    This situation poses dangers of its own. Ever since the debate surrounding the changing law on use of force in effecting an arrest hit the headlines, South Africans have been confused about when they can and cannot use their guns to defend themselves. If they err on the side of caution, they could lose their lives. If they err on the side of violence, they could lose their liberty. This article focuses on just one aspect of this debate: the use of lethal force to defend property. While the
    case law remains unclear, the guiding principles today suggest that killing another person in order to retain property is unlikely to be deemed lawful by the courts.

    The right to defend yourself

    In common law, the controlling principle on the right to use force to defend one’s self or one’s property is proportionality: the defensive act may not be more harmful than necessary to ward off the attack. Although there are no hard and fast rules, courts weigh up the interests protected by the defensive act against the interests infringed by the unlawful attack. In determining whether a crime victim acted reasonably, the courts judge each case on its own merits.

    Certainly, an owner who is confronted by a robber is not expected to abandon his property. He is entitled to protect it, and the court will consider all the circumstances2 when deciding whether the means of defending the property were reasonable. This right to self-protection can provide a defence to a charge of assault or even, in some cases, murder. Our law allows you to defend yourself, another person, your property or the property of another against a current or imminent unlawful attack.

    3 When a person pleads private defence, his claim is that the injury he caused was, in the circumstances, lawful and permissible. This common law defence is often confused with the statutory provision contained in Section 49 of the Criminal Procedure Act as amended,4 which allows for the use of force when effecting an arrest. Despite certain similarities, these defences should not be conflated with each other as they are used for different purposes and have different requirements.

    What does the case law say?

    The first authoritative decision that dealt with the use of lethal force to protect property was Ex Parte Minister of Justice: In re S v Van Wyk.6 In this case, a shopkeeper whose shop had been repeatedly broken into took desperate measures to protect his belongings and rigged a shotgun in such a way that the intruder would trigger the device upon breaking into the store.

    One night an intruder broke in, set off the device and received a fatal wound. On a charge of murder, the shopkeeper invoked private defence and the court upheld his defence, acquitting him on all charges. The court reasoned that a person may, in exceptional circumstances, use lethal force to protect his property when there is no other way in which the goods can be retained. The only limit the court imposed was that the value of the goods should not be of a trivial nature. This decision was later followed in S v Mogohlwane.7

    In terms of these two decisions, killing in defence of property could be justified in situations where valuable property was being stolen. However, these judgements were handed down almost 40 years ago – long before South Africa’s shift to a human rights democracy. If faced with similar facts today, the courts would undoubtedly arrive at a different decision.

    Changes under the new constitution
    South Africa’s new constitutional democracy turned our legal system on its head. The Bill of Rights 2 protects various fundamental human rights, including the right to life8 and the right to property.9 In cases of private defence, it is inevitable that these rights will need to be weighed against each other. The court’s balancing act would have to comply with the requirements as set out in section 36 of the Bill of Rights: was the infringement reasonable and justifiable in an open and democratic society based on principles on human dignity, equality and freedom?

    Applying this test, it is unlikely that any reasonable court would consider it justifiable to take another person’s life in defence of property. Consider the following scenario. You are woken in the middle of the night by the sound of breaking glass. You
    look out of your bedroom window and see a thief stealthily driving your new sports car down the driveway. You shout at the thief to get away from your car, but he ignores you and continues to drive away. In desperation, you grab your gun and fire at the thief, killing him.

    Your defence is that you were protecting your valuable property and that there was no other way of preventing the thief from stealing the vehicle. Also, the theft was still in progress, so your defence would comply with the requirements that the defensive act should be aimed at an attack that is not yet completed. In terms of the Van Wyk decision, you would almost
    certainly succeed with this defence. However, in light of the constitutional changes noted above, it is very possible that you would find yourself in danger of being convicted of murder. On the other hand, you could argue that the Bill of Rights also protects your right to your property, and that the constitution does not provide for a hierarchy of rights.10 This is perhaps so, but recent decisions have indicated that the right to life cannot be arbitrarily infringed, allowing for lethal force only in situations where lives of innocent persons require protection.11

    The landmark decision in S v Makwanyane12 entrenched the right to human life by abolishing the imposition of the death penalty in South Africa. The court also made passing reference to the need to bring other aspects of South African law in line with the constitutional emphasis on the sanctity of human life. With reference to section 49 of the Criminal Procedure Act, the court warned that if the state was no longer permitted to take a life in punishment of a convicted criminal, then how
    could the law allow anyone to take the life of a person they are trying to arrest. The same reasoning would surely apply to someone who takes the life of the thief who steals his property.

    Evading lawful arrest is equally, if not more, serious than theft. Similarly, the more recent decision of Govender v the Minister of Safety and Security,13 followed the Makwanyane reasoning in respect of using deadly force. The court held that the use of lethal force in effecting an arrest may only be used if the fleeing suspect poses an immediate threat of bodily harm to members of the public. This decision was later followed in the constitutional court case of Ex Parte Minister of Safety and Security and other: In re S v Walters and Another.14 In short, these cases confirm that use of deadly force can only be justified when the suspect poses a threat to the lives and safety of others.

    If we apply this to the car theft scenario above, then it is clear that you would not be able to use lethal force to prevent the theft of your vehicle. You would have to resort to other non-lethal methods of trying to prevent the crime. If during your lawful attempts to prevent the theft, the thief retaliates and poses a threat to your life or anyone else, only then would you legally be entitled to use necessary force to defend yourself or others. It is important to remember that before you can act in self-defence, the attack against you should have commenced, or at least be imminent. For example, if the thief pulls out a firearm and aims in your direction, then you would be justified in using lethal force to protect your life. However, you cannot shoot the unsuspecting thief on the premise that if you confront him, he would place your life in danger. The pre-emptive strike principle is not applicable in private defence cases.

    Consider another set of circumstances. You wake up one night and discover that an intruder has broken into your living room. The thief is armed with a firearm and is sneaking through the house, gathering valuable items as he proceeds.
    You know that if he is startled he might shoot you or your family. Can you lawfully shoot him? Do you have to take your family and flee from your home? Do you have to wait for him to attack you or your family?



    Unlike the scenario with the car thief, this time the intruder is in your home. However, the same legal principles apply. You cannot use lethal force to prevent him from walking out with your TV. Instead, you or your family would have to be in immediate danger. It could be argued that the mere fact that the intruder is in your home is sufficient threat to justify your using lethal force against him. Again, each case could be judged separately, but the legally safe option would be to avoid using lethal force until you have no other option.15 Rather avoid confronting intruders. It could save your life and keep you out of jail.

    In short
    The principle is simple: the life of the attacker can only be taken in order to protect your or someone else’s life or to prevent serious bodily harm. It is unlawful to use lethal force in any other circumstances. In other words, your property is not worth the life of the person that is stealing it from you!

    Endnotes
    1 News24, 26th of May 2004.
    2 These include: the value of the property, nature and extent of the danger, the time and place of the occurrence, etc.
    3 Self-defence is commonly referred to as private defence. Private defence captures the broader scope of legally recognised interests.
    4 Act 57 of 1977.
    5 Most legal systems have approached the question of what interests may be protected by private defence in a casuistic way, with the result that not all potentially recognisable interests have been recognised as the subject of self-defence. Examples of legally recognised interests include: life, limb, property, dignity, personal freedom, chastity and sexual integrity.
    6 1967 (1) SA 488 (A).
    7 1982 (2) SA 587 (T).
    8 Section 11 of the Constitution.
    9 Section 25 of the Constitution.
    10 This approach is supported by CR Snyman, Criminal Law sixth edition 2003 at 108, who argues that lethal force may be used when it is your last available alternative to defend your property.
    11 Lethal force would also be justified to prevent serious bodily harm and to prevent rape.
    12 1995 (3) SA 391 (CC).
    13 2001 (2) SACR 197 (SCA).
    14 Case unreported.
    15 When judging whether or not the defence was reasonable in the circumstances, the court will avoid assuming the role of an armchair critic and will take the traumatic and emergency nature of the incident into account.
    Best SD weapon ever? The one on you when the SHTF.

  2. #2
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    Default Re: When can I fire? Use of lethal force.

    Thanks Martin.

    It is a tricky situation and needs to be reminded of that.

    Maybe we can add to this thread by actual occurrences and court decisions that would expand on the information of when we can and we can't.

  3. #3
    Member abhm's Avatar
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    Default Re: When can I fire? Use of lethal force.

    brilliant idea thanks for this Martin
    I am studying an awesome brand of leg fighting which was inspired by dung beetles and I think my brand of Kraft Manure is superior to all other styles ever invented. Furthermore I challenge all other manurists to a rolling contest where we shall establish whose manure ball is the biggest! I shall call it Honest Kraft Manure and declare it superior to all other brands of manure and will tell you that I have claimed the lineage directly to Imshi the great Dragon Kru Master Beetler who invented manuring, by gathering all manure from different animals together and making it work as the worlds most effective fertilizer. I proved myself by being members of not one but three super elite special gardening departments who were responsible for spreading manure to combat weed infestations!

  4. #4

    Default Re: When can I fire? Use of lethal force.

    Very helpfull thanks.
    "Guns are just tools, the way they're used reflects the society they're apart of, if you don't like guns, blame it on society" ~Chris Kyle

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    Default Re: When can I fire? Use of lethal force.

    Maybe we should work on a "You Can/Can't" subforum based upon actual events and this opinion? or could there be a liability issue for Gunsite - SSP ? I do not think so especially if we put up disclaimers ??

  6. #6

    Default Re: When can I fire? Use of lethal force.

    Quote Originally Posted by Khumba
    Maybe we should work on a "You Can/Can't" subforum based upon actual events and this opinion? or could there be a liability issue for Gunsite - SSP ? I do not think so especially if we put up disclaimers ??
    I would like too see that. Still too much confusion regrading when you can/cant shoot.
    "Guns are just tools, the way they're used reflects the society they're apart of, if you don't like guns, blame it on society" ~Chris Kyle

  7. #7

    Default Re: When can I fire? Use of lethal force.

    Quote Originally Posted by FrankH
    Quote Originally Posted by Khumba
    Maybe we should work on a "You Can/Can't" subforum based upon actual events and this opinion? or could there be a liability issue for Gunsite - SSP ? I do not think so especially if we put up disclaimers ??
    I would like too see that. Still too much confusion regrading when you can/cant shoot.
    Thanks to Martin for posting this article. Its been around for some time, but nothing like dusting off a few basic "rules of engagement".

    I participate on a number of overseas gun forums and this post of Martin made me go back to the overseas archives to get a feel for this type of "do/don't" scenario in other parts of the world. Especially in places where legal gun owners are not regarded as "gun freaks, villians or vigilantes".

    Almost everywhere the circumstances under which fire is exchanged are severely scrutinised these days. Even where action taken "in self defence", the resulting investigation is not much different to our local circumstances. Foreign folks might not have to jump the hoops to the extend we have to under 60/2000, to obtain a FA, but loss of life or bodily harm caused by a FA is treated similar.

    Ikor will probably concur on this observation.

    A "You Can/Can't" subforum will probably call for the guidance of a legal Eagle. No two cases are the same, as the law is not black or white, but consists of 16+ million shades of grey.

    What is widely known, is that "packing" responsible gunowners are extremely polite people to prevent the "do/don't" situation to happen.

    Again, under our local unique circumstances, this issue might not be so clearcut. This is something I personally have to contend with and live the unnecessary stress.

  8. #8

    Default Re: When can I fire? Use of lethal force.

    I agree that this remains a difficult situation and there are no 100% yes and no answers but more of a 'guideline'. Each situation is unique and the application of the same principal in two very similar, yet slightly different situation can have two different outcomes.

    I do however feel that we do address this in a way by our discussions under scenarios and I do consider this important and helpfull. To me it goes without saying that advice and opinions made are to be taken with all disclaimers in mind without even being mentioned.

    To me the dissecting of a case in the open could also go the other way in that you could use this in reverse gear when used against you in that it could show that you do take the matter serious and do try to the best of you ability and knowledge, explore the different options as to make the correct choice when confronted with the real deal.

  9. #9
    Moderator ikor's Avatar
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    Default Re: When can I fire? Use of lethal force.

    Very true, 92FS, and some very good points.

    Even the cops are often confused as to when and under what conditions they can use deadly force. I suppose it is only human nature to want clear, concise lines to be drawn so that one can say 'If THIS happens, I can do THAT, but if a different THIS happens, I can't'. Problem is that very few cases will ever be as clear as we would like them to be.

    One thing you can count on is that in pretty much any place you are...if you use deadly force by any means against another person you will have to justify it to the authorities. Things like our 'castle doctrine' and 'stand your ground law' do make such justification a bit easier but only because they clear up some of the ambiguity and general confusion surrounding an incident. You will still almost certainly have to justify your actions to a Grand Jury...even if you are a cop.

    Among other things, this is another very good reason for citizens...cops are citizens too ya know...to seek out and take good SD training. I know many officers who do just that and pay out of their pockets for it. I don't know the rules of evidence in SA courts, but here there is no requirement for a judge to allow expert witness testimony in any case that comes before him / her, thus you may not be allowed to bring in such an expert (at great expense I might add) to testify on your behalf, but you WILL be allowed to testify directly to your own training and experience.

    Even something as well known to shooters as the 21ft / 7 meter rule will not be known by most judges or jury members, and if you are not allowed to hire an expert to tell them, then it is up to you. While email and the internet are, in fact, changing the way courts look at things, I am a long way from certain that a judge would allow viewing a video to be considered 'training' that could be testified to under oath.

    Remember, that expert witness is allowed...after being vetted by all sides...to testify to his or her opinion, and they won't be sitting behind bars if the court does not believe them. You, however, must testify to facts that directly bear upon your continued freedom...or lack of it.
    Run Fast, Bite Hard!

  10. #10
    BGOASA Martin Hedington's Avatar
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    Default Re: When can I fire? Use of lethal force.

    Quote Originally Posted by ikor

    I don't know the rules of evidence in SA courts, but here there is no requirement for a judge to allow expert witness testimony in any case that comes before him / her, thus you may not be allowed to bring in such an expert (at great expense I might add) to testify on your behalf, but you WILL be allowed to testify directly to your own training and experience. Remember, that expert witness is allowed...after being vetted by all sides...to testify to his or her opinion, and they won't be sitting behind bars if the court does not believe them. You, however, must testify to facts that directly bear upon your continued freedom...or lack of it.
    Well FWIW, (probably about as much as its cost you here perhaps, LOL!). I have on more more than one occasion been asked by defense attorneys to testifiy as an 'expert witness' in court, (although I personally don't consider myself as one). Although I'm not an attorney myself, perhaps being -inter alia- GM of a Community-based, Counter-crime, (pro-firearm), Independant NGO, twelve years (not all concurrently), as; A police reservist, A Registered Private Security Officer, serving on on my CPF EXCO, (4 yrs) SCF Vice Chair, (5 yrs) Residents Association Chair (7 yrs), Ward Committee Community Safety Portfolio representative, (3 yrs) National EXCO of GOSA, (3 yrs) Executive Director of the DVD Live Fire and publisher of the Community Safety Handbook 'Conditioned Victim' maybe helps a littlel, LOL! (I think it takes me more time to read out my credentials than to testify! LOL!). Neither defense, prosecution, nor Magistrate have ever questioned my background. (And I've sometimes handed out free copies of our book too, just to show I'm more than a little altruistic, LOL!).

    Expensive? No, my 'fee' has usually been merely the costs involved in getting to court, and thats usually paid by the court itself, not the defendant. ('Nuff said). Although I do prefer at least a day's breifing with the defendant and any other available witnesses to discuss the merits of the 'defence', (no, not the one in court, the event concerned where he used his weapon(s) ).

    I also have -in my own area at least- a certain street cred from the Judiciary from beng prepared to be called by people in my immediate area to act, and subsequently appear in court- as a witness in various petty neighbourly disputes that occur from time to time. I've found it goes a long way toward a better relationship with my local fuz, (I mean, very few people actually trust what they say in court any more, do they?! LOL!).

    Re Para 2: All you have to do is ask. (your attorney first).

    Which brings me to my question, (based on our book). In it, we cover amogst a lot of things 'use of ones, (or the attackers) firearm' of course. In part III; 'Defence', Section 4; 'After the Attack'; We recommend that after you secure the scene and ensure everyone is safe and stable, there are three phone calls you should make ASAP. Q. Who would they be to, and in what order should they be made. Remembering that you may be asked by the prosecution why that order of calls was significant to you at the time. (and if he doesn't, make sure your own lawyer does, heh heh heh).

    First correct answer, (logged here in this thread) wins a prelicensed LM5, five spare mags and 2000 rounds of ammo, (oops, sorry, thats the next competition), I meant of course a free book. (Owners of our book are automaticall disqualified I'm afraid).

    In Common Cause, Brothers (-in-arms)

    Martin_tu
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    Best SD weapon ever? The one on you when the SHTF.

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